P KANDASAMY Vs. MANIKANDAN FINANCE

JUDGEMENT

(1.) These petitions have been filed to set aside the order dated 10.01.2019 passed in memo dated 20.12.2018 in STC.No.394, 413, 562, 166, 412, 415, 410, 453, 393, 454, 511, 423, 563 and 424 of 2007 on the file of the Judicial Magistrate No.II, Metturdam and to set aside the order dated 06.09.2010 passed in CMP.No.2586, 2587, 2589, 2590, 2593, 2592, 2588, 2595 , 2594, 2596, 2597, 2591, 2598, 2599 of 2010 in STC.No.393, 394, 413, 454, 412, 511, 423, 562, 563, 415, 424, 410, 453 of 2007, 166 of 2008 on the file of the Judicial Magistrate No.II, Metturdam.

(2.) Mr.A.K.Kumaraswamy, learned Senior Counsel appearing for the petitioners submitted that in all the cases, the petitioners are accused in STC.No.394, 413, 562, 166, 412, 415, 410, 453, 393, 454, 511, 423, 563 and 424 of 2007 on the complaint lodged by the respondent for the offences punishable under Section 138 of NI act. In all the cases, the evidence of the complainant was completed and after questioning under Section 313 of Cr.P.C., the accused were examined as defence side witness, DW1. At that juncture, the petitioners changed their counsel and filed petitions to recall PW1 under Section 311 of Cr.P.C. for further cross examination.

(3.) Per contra, Mr.K.Sakthivel, learned counsel for the respondent would submit that the respondent lodged complaint for the offence punishable under Section 138 of NI Act as against the petitioners in the year 2007. The respondent was examined as PW1 in all the cases. The petitioners did not cross examine PW1 on the date of chief examination of PW1 and they were given further opportunity to cross examine PW1. Even then, the petitioners failed to cross examine PW1 and as such the evidence of PW1 was closed. Thereafter the petitioners filed petitions to recall PW1 under Section 311 of Cr.P.C. and the same were allowed. Thereafter, on two occasions, the petitioners cross examined PW1 in detailed manner. While being so, the petitioners repeatedly changed his counsel and the new counsel on record again filed petitions under Section 311 of Cr.P.C. to cross examine PW1. In fact, after allowing the petitions filed under Section 311 of Cr.P.C. in the earlier occasion, the petitioners again filed petitions under Section 91 of Cr.P.C. for producing some documents by the respondent. Thereafter on production of documents by the respondent, then only the petitioners cross examined the respondent. Therefore, the petitioners used to file petition after petition only to delay the process of trial. Therefore, the second petition filed by the petitioners under Section 311 of Cr.P.C. for cross examination of PW1 is rightly dismissed by the trial court with detailed reason. Aggrieved by the same, the petitioners filed these petitions to set aside the same. Unfortunately, this Court without giving opportunity to the respondent and without even ordering any notice to the respondent, was pleased to allow the petitions and set aside the order passed by the trial court by order dated 20.01.2011. Therefore, the respondent was constrained to file appeals before the Hon'ble Supreme Court of India and the Hon'ble Supreme Court of India was pleased to set aside the order passed by this Court and remitted the matter back for fresh disposal. Therefore, the petitioners had already elaborately cross examined PW1 and also the petitioners were examined as DW1. At that juncture, again the present petitions have been filed to recall PW1 only on the ground that the earlier counsel failed to cross examine the vital part.